United States District Court, M.D. Pennsylvania
STEVEN BASILE, on behalf of himself and all others similarly situated, Plaintiff
STREAM ENERGY PENNSYLVANIA, LLC, et al., Defendants
the Court is Plaintiff's Unopposed Motion for Preliminary
Approval of Class Action Settlement. (Doc. No. 80.) For the
reasons that follow, the Court will grant the motion and
schedule a fairness hearing.
9, 2015, Plaintiff Steven Basile filed a putative class
action complaint, on behalf of himself and all others
similarly situated, in the United States District Court for
the Eastern District of Pennsylvania against Defendants Stream
Energy Pennsylvania, LLC, Stream Energy Pennsylvania, LLC
d/b/a Stream Energy, and Stream Energy d/b/a Stream Energy
Pennsylvania LLC (“Defendants”), alleging that
his deregulated electricity provider did not abide by the
terms of his service contract, resulting in
higher-than-expected rates. (Doc. No. 1.) Plaintiff's
complaint asserted claims for breach of contract (Count 1),
breach of the covenant of good faith and fair dealing (Count
2), declaratory relief (Count 3), and a violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”) (Count 4). (Id.) After
Defendants filed a motion to dismiss Counts 2 through 4,
Plaintiff stipulated to the dismissal of Counts 2 and 3,
leaving only a claim for breach of contract and a violation
of Pennsylvania's UTPCPL. On September 6, 2016, this
Court, by Memorandum and Order, granted Defendants'
motion to dismiss Plaintiff's UTPCPL claim, leaving only
Plaintiff's breach of contract claim pending. (Doc. Nos.
the parties proposed deadlines governing class certification,
expert reports, and dispositive motions (Doc. No. 60), which
were approved and subsequently extended by the Court at the
request of the parties by Orders dated November 9, 2016 (Doc.
No. 61), June 17, 2017 (Doc. No. 67), and July 14, 2017 (Doc.
No. 69). On October 23, 2017, after the parties had engaged
in discovery for a number of months, Plaintiff's counsel
submitted a letter to the Court indicating that the parties
had reached an agreement in principle to settle the case, and
requesting the Court's approval of a joint stipulation to
stay case deadlines until November 30, 2017 (Doc. No. 74),
which the Court granted (Doc. No. 75). After filing a second
stipulation seeking additional time to finalize the proposed
Settlement Agreement (Doc. No. 76), which the Court approved
(Doc. No. 77), Plaintiff filed the pending Unopposed Motion
for Preliminary Approval of Class Action Settlement on
December 28, 2017 (Doc. No. 80).
Motion requests an Order: (1) preliminarily approving the
proposed Settlement Agreement for the purposes of allowing
dissemination of notice of the settlement to the proposed
Settlement Class; (2) establishing a date for a hearing on
final approval of the proposed settlement; (3) approving the
form of class notice; (4) approving the notice plan and
directing that notice be made available and published; (5)
establishing a deadline for filing papers in support of final
approval of the proposed Settlement Agreement, as well as the
filing of objections by Settlement Class members; (6)
establishing a deadline for Settlement Class members to
exclude themselves from the proposed Settlement Class; and
(7) appointing Jonathan Shub, Esq. of the firm Kohn Swift
& Graf, P.C. and Troy M. Frederick, Esq. of the firm
Marcus and Mack, P.C., as Class Counsel for the Settlement
Class. (Doc. No. 80.) In support of his Motion, Plaintiff
submitted a supporting brief (Doc. No. 81), and the
following: (1) the Proposed Settlement Agreement (Doc. No.
81-1); a Draft Long Form Notice of Proposed Class Action
Settlement (“Settlement Notice”) (Doc. No. 81-2);
a Draft Publication Notice of Proposed Class Action
Settlement (“Publication Notice”) (Doc. No.
81-3); a Proposed Order granting preliminary approval of
Proposed Class Action Settlement (Doc. No. 81-4); a Proposed
Order granting final approval of Class Action Settlement
(Doc. No. 81-5); a Claim Form (Doc. No. 81-6); the
Declaration of Steven Weisbrot, Esq., partner with Angeion
Group, LLC (“Angeion”), a class action notice and
settlement administration firm (Doc. No. 81-7); the
Declaration of Jonathan Shub, Esq. (Doc. No. 81-8); and
descriptions of the two law firms sought to be appointed
Class Counsel (Doc. Nos. 81-9 and 81-10).
Class Action Settlement
Rule of Civil Procedure 23(e) governs the settlement of class
actions and the procedures that apply for review of a class
action settlement. Fed.R.Civ.P. 23(e); In re Nat.
Football League Players Concussion Injury Litig., 775
F.3d 570, 581 (3d Cir. 2014). The following procedures apply
to a proposed settlement:
(1) The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is
fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement
identifying any agreement made in connection with the
(4) If the class action was previously certified under Rule
23(b)(3), the court may refuse to approve a settlement unless
it affords a new opportunity to request exclusion to
individual class members who had an earlier opportunity to
request exclusion but did not do so.
(5) Any class member may object to the proposal if it
requires court approval under this subdivision (e); the
objection may be withdrawn only with the court's
Fed. R. Civ. P. 23(e).
court's decision to preliminarily approve a proposed
class action settlement is not a commitment to approve the
final settlement, but instead “is a determination that
‘there are no obvious deficiencies and the settlement
falls within the range of reason.'” Gates v.
Rohm and Haas Co., et al., 248 F.R.D. 434, 438
(E.D. Pa. 2008) (quoting Smith v. Prof. Billing &
Mgmt. Servs., Inc., No. 06-4453, 2007 WL 4191749, at *1
(D.N.J. Nov. 21, 2007) (citations omitted)). Preliminary
approval of a proposed class action settlement
“establishes an initial presumption of fairness,
” In re Gen. Motors Corp., 55 F.3d 768, 785
(3d Cir. 1995) (citing Newberg on Class Actions § 11.41
(3rd ed.)), and guides “whether notice of the proposed
settlement should be sent to the class.” Newberg on
Class Actions § 13:13 (5th ed.). In reviewing a proposed
class action settlement, district courts examine whether the
proposed agreement arose out of “serious, informed
non-collusive negotiations, ” has any “obvious
deficiencies, ” “improperly grant[s] preferential
treatment to class representatives or segments of the class,
” and “falls within the range of possible
approval.” In re Nasdaq Market-Makers Antitrust
Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (citing
Manual for Complex Litigation § 30.41 (3rd ed.));
see In re Gen. Motors Corp., 55 F.3d at
Conditional Certification of Settlement Class
if “the Court has not already certified a class, the
Court must also determine whether the proposed settlement
class satisfies the requirements of Rule 23.”
Gates, 248 F.R.D. at 439 (citing Anchem v.
Windsor, 521 U.S. 591 (1997)). In making this
preliminary determination, district courts examine whether
“the proposed class satisfies the criteria set out in
Rule 23(a) and at least one of the subsections of Rule
23(b).” Manual for Complex Litigation § 21.632
(4th ed.)). The court may conditionally ...